Article courtesy of SBAM Approved Partner ASE
By Michael J. Burns
At a recent ASE Roundtable on responding to difficult employees, the discussion turned to employees who know just how far to take absenteeism and avoid being discharged. The employer involved had a no-fault attendance policy, consistent enforcement and good documentation practices. It met the notice and tracking requirements of the Family and Medical Leave Act (FMLA) and knew how to stay on the right side of the Americans With Disabilities Act (ADA). The employee was consistently behind or lax in supplying medical information required by FMLA and ADA, so that the employer never had all the information it was legally entitled to. Still, the employee seemed to be able to stay just out of reach of the employer’s disciplinary policies, and whenever the employer did seem to be able to circle in on the problem, the employee would come back strong and clean up their attendance act for the time being.
Most employers and/or HR professionals have been pulled into this game. The employee knows just how far to go and an employer’s fear of legal reprisal and the subsequent costs and distractions to the organization keeps it from discharging the employee then and now.
What is the cost of a lawsuit? Anywhere from $20,000 on the low end (using legal counsel to beat back the EEOC or MCRD and getting it kicked out in Summary Disposition) to well north of $100,000 if the case is taken to the appeals court level, which the following case did:
Coincidentally to the above Roundtable, a recent Sixth Circuit Court of Appeals decision, which came down in favor of the employer, highlights the difficult position employers are in.
In the case of Gecewicz v. Henry Ford Macomb Hospital Corporation No.11-10965 (HFMH), the hospital sought to address the excessive absenteeism of a nurse. The hospital ran a no-fault system that counted “occurrences” of absences and tardiness; it had generous paid time off policies, and it adhered to the policy and record-keeping requirements of the FMLA and the ADA.
The employee worked for the hospital for ten years before being fired in 2008 for excessive absenteeism. Her absences were the result of a number of healthcare problems and surgical procedures, some medically necessary and some elective. Through her first nine years of employment she was never disciplined for these absences, though her supervisor made comments about them and the court took note of those comments. In 2007 and 2008 she had a series of occurrences that pushed her accrual to seven, which generated a written warning under the system. By early April 2008 one occurrence had dropped off her record but a new one brought it back to seven; by May 22 a No-Call/No-Show occurrence pushed her accrual to 10, making her subject to termination under the policy. The hospital terminated her.
The employee had finally been cornered after a great deal of time. But now she claimed that she never received the hospital’s notice, even though the hospital was able to produce that notice.
In March 2009 the now ex-employee filed a complaint with the EEOC; the following October she filed a civil lawsuit against the hospital alleging the same claims as her EEOC complaint.
In October 2010 the hospital moved for Summary Disposition, stating the employee had not made her case that she was “regarded (by the hospital) as disabled” under the ADA. She argued that because her supervisor knew of her many surgeries – knee replacements, bariatric surgery, carpal tunnel surgery and bowel obstruction surgery – they had to have been the real reasons for her termination.
The District Court granted the hospital’s motion for Summary Judgment. It ruled that the employee failed to offer evidence that she was “regarded as” having an impairment sufficient for a finding of discrimination under the ADA. The employee appealed. The Sixth Circuit upheld the District Court’s ruling, even as it noted that the lower court had construed all the facts in favor of the plaintiff, as it was required to do. But at this level the Appeals Court had to review the facts in the light most favorable to the non-moving party, i.e., the hospital. It meant that now the plaintiff had to prove she was disabled; that she was otherwise qualified to perform the essential functions of her job; that she suffered an adverse employment action; that her employer knew or had reason to know of her disability; and that either the position remained open or a non-disabled person replaced her. In that light, the Appeals Court still found the employee’s claims merit-less.
It may very well have been that the strategy of the plaintiff’s legal counsel was to bank on the high cost in time and money the hospital would incur for running the lawsuit. Unfortunately for them, the strategy didn’t work.
The takeaway from this is that despite an employer’s best efforts and solid employment practices, the risk of the rogue lawsuit is always real. It puts an employer between Greek mythology’s Scylla and Charybdis (roughly translated: between a rock and a hard place) and forces it to choose the lesser of two evils: fight the good fight regardless of cost, or reach an early settlement that saves a great deal of time, money and aggravation. It is the price of being an employer today.
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